EXHIBIT 5
PARTNERSHIP INTEREST AND SHARE PURCHASE AGREEMENT
This Agreement (the "AGREEMENT") is made and entered into as of April 8 2007, by
and between Aeronautics Defense Systems Ltd., a company organized under the laws
of the State of Israel (the "SELLER") and Xxxxxx Marketing SA., a company
organized under the British Virgin Islands laws ("PURCHASER").
WITNESSETH:
WHEREAS, the Seller is the owner of a limited Partner's interest
("INTEREST") in Chun Holdings Limited Partnership, a limited partnership
established under the laws of the State of Israel (the "PARTNERSHIP") and is the
owner of 100 Ordinary Shares, NIS 1.00 per value each of Chun Holdings Ltd., a
private company incorporated under the laws of the State of Israel, which is the
general Partner of the Partnership (the "GENERAL PARTNER"), representing one
third (1/3) of the issued and outstanding share capital of the General Partner
and of its voting rights (the "SOLD SHARE") and;
WHEREAS, the Purchaser was designated by Geometric Hedge Limited, a
shareholder of the Seller, to purchase the Interest and the Sold Shares from the
Seller, and is familiar with the Partnership and the General Partner; and
WHEREAS, the Seller desires to sell, transfer and assign the Interest and
the Sold Shares to the Purchaser, and the Purchaser desires to acquire, receive
and assume the same from the Seller, all on the terms and conditions set forth
below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser agree as
follows:
7. SALE AND ASSIGNMENT OF THE INTEREST AND THE SOLD SHARES.
7.1. SALE AND ASSIGNMENT OF THE INTEREST AND THE SOLD SHARES. Subject to
the provisions of Section 1.4 below, at the Closing (as described in
Section 1.2 bellow), the Seller shall unconditionally and irrevocable
sell, assign, transfer and convey the Interest and the Sold Shares to
the Purchaser in consideration of the aggregate sum of US$ 3,941,250
(three million nine hundred and forty one thousand and two hundred and
fifty United States Dollars) (the "CONSIDERATION") to the paid by
Purchaser to the Seller by wire transfer in immediately available
funds to a bank account designated by Seller, without any set-of,
counterclaim or withholding of any nature whatsoever, free and clear
of all taxes, commissions or expenses of any nature whatsoever,
including transfer and banking fees.
7.2. THE CLOSING. Subject to the provisions of Section 1.4 below, the
closing of this transaction ("CLOSING") shall take place and be held
at the offices of Goldfarb, Levy, Eran. Meiri & Co., Law Offices,
located at Xxxxxx-Xxxxxx Xxxxx, 0 Xxxxxxxx Xxxxxx, Xxx-Xxxx, Xxxxxx,
at 10:00 AM (Israel time), on the date that is three (3) business day
following the later of: (a) the date on which the transaction
contemplated under the Agreement among Xx. Xxxx Xxxxxx and Xx. Xxx
Xxxxxx and Geonetric Hedge Limited, Xxxx Technologies Ltd., Xxxxx
Hachatzav Ltd., Mr. Uri Manor, Xx. Xxxxxx Xxxxxxx and Kimba Ventures
Limited, dated February 23, 2007, was consummated in accordance with
its terms, or (b) the earlier of (i) the date on which Seller is
notified by each of Prescient Systems & Technologies Pte. Ltd. and by
Mr. Aviv Tzidon of their decision to waive their right of first
refusal with respect to the Sold Shares in accordance with Articles
9.4 of the Articles of Association of the General Partner; or (ii)
thirty (30) days following the date of receipt by Prescient Systems &
Technologies Pte. Ltd,. and by Mr. Aviv Tzidon of a rights notice as
described in Section 1.4 below, or on such other date, time, and
place, as the Seller and the Purchaser shall agree.
1
7.3. TRANSACTIONS AT CLOSING. At the Closing, the following transactions
shall occur and deliveries be made, which transactions and deliveries
shall be deemed to take place simultaneously and no transactions and
deliveries shall be deemed to have been completed or any document
delivered until all such transactions have been completed and all
required deliveries delivered:
7.3.1. The Seller shall deliver to the Purchaser the following
documents and take the following actions:
(a) Seller shall deliver an assignment and assumption agreement
with respect to the Invest, substantially in the form
attached hereto as EXHIBIT A (the "Assignment and Assumption
Agreement"), duly executed by the Seller;
(b) Seller shall deliver a share transfer deed representing
transfer by the Seller of the Sold Shares to the Purchaser
("SHARE TRANSFER DEED"), duly executed by the Seller; and
(c) Seller shall deliver approval of Bank Hapoalim B.M., which
has a floating charge of first degree over all assets of the
Seller, to the sale and transfer of the Interest and the
Sold Shares to the Purchaser.
7.3.2. The Purchaser shall deliver to the Seller to following
documents and take the following actions:
(a) Purchaser shall pay to the Seller the Consideration as set
forth in Section 1.1 above;
(b) Purchaser shall deliver the Assignment and Assumption
Agreement, duly executed by Purchaser;
(c) Purchaser shall deliver the Share Transfer Deed, duly
executed by the Purchaser; and
(d) Purchaser shall deliver the written consent of each of
Prescient Systems & Technologies Pte. Ltd. and Mr. Aviv
Tzidon to the transfer of the Interest to the Purchaser.
7.3.3. The Seller and the Purchaser shall jointly deliver the
following:
(a) Written consent of the General Partner to the transfer of
the Interest to the Purchaser;
(b) Resolution of the Board of Directors of the General Partner
approving the sale and transfer of the Sold Shares to the
Purchaser; and
7.4. RIGHT OF FIRST REFUSAL. It is hereby clarified that each of Prescient
Systems & Technologies Pte. Ltd. and Mr. Aviv Tzidon has a right of
first refusal with respect to the sale of the Soled Shares by the
Seller. Accordingly, immediately following the signing of this
Agreement, Seller shall send to each of Prescient Systems &
Technologies Pte. Ltd. and Mr. Aviv Tzidon a rights notice, notifying
them to the proposed sale of the Sold Shares. In the event that
Prescient Systems & Technologies Pte. Ltd. and/or Mr. Aviv Tzidon
shall exercise their right of first refusal in accordance with the
provisions of Articles 9.4 of the Articles of Association of the
General Partner, this Agreement shall terminate and the parties hereto
shall be released of their respective undertakings hereunder.
2
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby represents
and warrants to the Purchaser as follows:
8.1. OWNERSHIP. The Interest Constitutes the entire interest of the Seller
in the Partnership. The Sold Shares constitute the entire holdings of
the Seller in the General Partner. Except for the floating charge of
Bank Hapoalim B.M., Seller owns the Interest and all rights attached
to the Interest and the Sold Shares and all rights attached to the
Sold Shares, free and clear of all liens, charges, encumbrances, debt,
restrictions, claims, options to purchase, proxies, voting agreements,
calls, commitments, rights of first refusal, orb third party rights of
any kind, other than those which are imposed by: (a) the Binding Term
Sheet among Mr. Aviv Tzidon, the Seller and Singapore Technologies
Group, dated October 30, 2003, as amended and the Limited Partnership
Agreement, dated December 28, 2003, as amended from time to time, and
(b) by the Articles of Association of the General Partner,
respectively.
8.2. ORGANIZATION; AUTHORITY; BOARD AUTHORIZATION. Seller is a corporation
duly organized and validly existing under the laws of the State of
Israel. Seller has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligation hereunder. The
execution and delivery of this Agreement by Seller and the
consummation by it of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of
Seller. This Agreement has been duly executed and delivered by Seller
and constitutes the valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
8.3. NO OTHER REPRESENTATIONS. Except for the representations and
warranties contained above in this Section 2, no representation or
warrant, whether expressed or implied, is given hereunder by Seller to
Purchaser, and other than Seller's representations and warranties
expressly set forth in Section 2 hereof, Purchaser is purchasing in
Interest and the Sold Shares on an "AS IS" basis.
9. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser hereby
represents and warrants to the Seller as follows:
9.1. ORGANIZATION; AUTHORITY. Purchaser is a company duly organized and
validly existing under the laws of the British Virgin Islands.
Purchaser has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this Agreement
and otherwise to carry out its obligation hereunder. The execution and
delivery of this Agreement by Purchaser and the consummation by it of
the transactions contemplated thereby have been duly authorized by all
necessary corporate action on the part of Purchaser and no further
corporate action for such authorization is required of Purchaser. This
Agreement has been duly executed and delivered by Purchaser and
constitutes the valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms.
9.2. FINANCING. Purchaser possesses on the date of execution of this
Agreement sufficient cash resources or the ability to otherwise
finance the Consideration.
9.3. PURCHASE "AS IS". Purchaser acknowledges and confirm that as a
Shareholder of the Seller be is familiar with the Partnership, the
General Partner and their respective business condition. Purchaser
agrees to Purchase the Interest and the Sold Shares on an "AS IS"
basis, without reliance on any representation or warranty of Seller
other than Seller's representations and warranties expressly set forth
in Section 2 hereof.
3
10. COVENANTS OF THE PARTIES
10.1. ADDITIONAL ACTIONS. Each party hereto shall perform such acts and
execute such documents as may be reasonably necessary in order to
obtain the consents, approvals and/or waivers set forth in Section
1.3.3 hereof. In addition, each of the parties hereto shall perform
such further acts and execute such further documents as may reasonably
be necessary to carry out and give full effect to the provisions of
this Agreement and the intentions of the parties as reflected thereby.
10.2. EXPENSES OF TRANSFER. The Seller and the Purchaser shall each be
responsible for its own expenses incurred in connection with the
transactions contemplated by this Agreement.
11. MISCELLANEOUS
11.1. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
exclusively by and be construed according to the laws of the State of
Israel, without regard to the conflict of laws provision thereof. Any
dispute arising under or in relation to this Agreement shall be
resolved exclusively in the competent court of Tel Aviv - Yaffa, and
each of the parties hereby submits irrevocably to this jurisdiction of
such court.
11.2. SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise expressly
limited herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors and assigns of the parties hereto.
None of the rights, privileges, or obligations set forth in, arising
under, or created by this Agreement may be assigned or transferred
without the prior consent in writing of each party to this Agreement,
such consent not to be unreasonably withheld.
11.3. ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement, including all
exhibits and schedules thereto, constitutes the full and entire
understanding and agreement between the parties with regard to the
subject matters hereof. Any term of this Agreement may be amended and
the observance of any term hereof may be waived (either prospectively
or retroactively and either generally or in a particular instance)
only with the written consent of all of the parties to this Agreement.
11.4. NOTICES, ETC. Any notice given under this Agreement must be in
writing to the address indicated herein below (or such other address
as may be indicated from time to time by the relevant party by giving
notice thereof) and shall be effective: (i) if mailed by first class
registered mail return receipt requested, ten (10) business days after
mailing; (ii) if sent by messenger, upon delivery; and (iii) if sent
via telecopier, one (1) business day after transmission and electronic
confirmation of receipt, when followed by a hard copy sent by first
class post.
If to Seller: Aeronautics Defense Systems Ltd.
0 Xxxxxx Xxxx Xxxxxx
Xxxxx, Xxxxxx
Facsimile: x000-0-0000000
Attn: Avi Leumi, CEO
With a copy (which shall not Goldfarb, Levy, Eran, Meiri & Co.,
constitute notice) to: Law Office
0 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx
Facsimile: x000-0-0000000
Attn: Xxxx Xxxxxx, Adv.
If to Purchaser: Portel Marketing SA
c/o Xx. Xxxx Xxxxx, Adv.
15 Abba Hillel Silver Rd.,
Ramat Gan, Israel
Facsimile: x000-0-0000000
With a copy (which shall Mr. Uri Manor
not constitute notice) to: 0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx
4
11.5. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to any party upon any breach or default
under this Agreement, shall be deemed a waiver of any other breach or
default thereto or thereafter occurring. Any waiver, permit, consent,
or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of
any party of any provisions or conditions of this Agreement, must be
in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, under this Agreement or by law or
otherwise afforded to any of the parties, shall be cumulative and not
alternative.
11.6. SEVERABILITY. If any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable under applicable law,
then such provision shall be excluded from this Agreement and the
remainder of this Agreement shall be interpreted as if such provision
were so excluded and shall be enforceable in accordance with its
terms; provided, however, that in such event this Agreement shall be
interpreted so as to give effect, to the greatest extent consistent
with and permitted by applicable law, to the meaning and intention of
the excluded provision as determined by such court of competent
jurisdiction.
11.7. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original
and enforceable against the parties actually executing such
counterpart, and all of which together shall constitute one and the
same instrument. Any party may rely on a facsimile signature of
another party as if an original signature.
11.8. CONFIDENTIALITY. Without the consent of the other, neither the Seller
nor the Purchaser will issue any press or news release or other public
notice or communications or otherwise make disclosure of this
Agreement and the transactions contemplated hereby to any third
person, except that such disclosure may be made as required by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered on the day and year first above written.
SELLER: AERONAUTICS DEFENSE SYSTEMS LTD.
_________________ by: _____________________________________
Name:
Title:
PURCHASER: PORTEL MARKETING SA.
_________________ by: _____________________________________
Name:
Title:
5
Exhibit A
ASSIGNMENT AND ASSUMPTION AGREEMENT
1. Reference is made to the Partnership Interest and Sale Purchase Agreement
(the "AGREEMENT") BETWEEN Aeronautics Defense System Ltd. ("ASSIGNOR") and
Portel Marketing SA ("ASSIGNEE"), dated as of April 8, 2007, pursuant to
which Assignor has, inter alia, agreed to sell, transfer and assign to
Assignee its entire interest as a limited partner in Chun Holdings Limited
Partnership, a limited partnership established under the laws of the State
of Israel) (the "PARTNERSHIP"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to them in
the Agreement.
2. For value consideration received, the receipt and adequacy of which are
hereby acknowledged, as of the date hereof (the "EFFECTIVE DATE"). Assignor
hereby assigns transfers and sets over unto Assignee and Assignee hereby
accepts and assumes the Interest.
3. Assignor hereby transfers and assigns to Assignee, effective as of the
Effective Date, any and all rights and privileges of the Assignor as an
owner of the Interest, including without limitations, any and all interest
in and to all of the loans made available from time to time by the Assignor
to the Partnership, and Assignee hereby assumes and accepts, as of the
Effective Date, on an AS IS basis, the performance of any and all
covenants, obligations and undertakings of the Assignor associated with the
Interest or otherwise related to the Partnership, and any and all
undertakings, covenants and obligations undertaken by the Assignor with
respect to the Interest and/or the Partnership or in relation thereto at
any time prior to the effective Date, including without limitations, all
obligations of the Assignor under the Binding Term Sheet among Mr. Aviv
Tzidon. Assignor and Singapore Technology Grout, dated October 30, 2003, as
amended (the "TERM SHEET") and in the Limited Partnership Agreement of the
Partnership, dated December 28, 2003 (the "PARTNERSHIP AGREEMENT").
4. Assignee hereby agrees and covenants that it will henceforth comply with
and observe all of the agreements and covenants of the limited partners of
the Partnership contained in the Term Sheet and in the Partnership
Agreement as if Assignee had been an original party thereto and as if the
same were herein set out in full.
5. This Assignment and Assumption Agreement shall be governed exclusively by
and be construed according to the laws of the State of Israel, without
regard to the conflict of laws provisions thereof. Any dispute arising
under or in relation to this Agreement and Assumption Agreement shall be
resolved exclusively in the competent court of Tel Aviv - Yaffa, and each
of the parties hereby submits irrevocably to the jurisdiction of such
court.
6. This Assignment and Assumption Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement and
Assumption Agreement as of the 3 day of May 2007.
ASSIGNOR ASSIGNEE
AERONAUTICS DEFENSE SYSTEMS LTD. PORTEL MARKETING SA.
by: _______________________________ by:__________________________
Name: Name:
Title: Title:
6
